A Litigator's Guide to the Universe

5 Simple & Essential Exercises for Defense Theme & Story Development

By Thomas M. O’Toole, Ph.D.

“Themes” and “story” have been the buzzwords of the jury consulting industry for nearly forty years. Judging from the vast majority of calls that I receive, these two items are what most defense attorneys believe are the missing pieces in their efforts to convince the jury to find for the defense. It can be challenging to develop a theme or a story. It sounds so simple, yet it can be unclear about how you go about developing them. Fortunately, there are experts like me who can assist defense attorneys with this process. However, for a variety of reasons, defense attorneys do not always have the ability to retain a jury consultant. With that in mind, this blog identifies five simple, but essential exercises for defense attorneys who are trying to develop powerful themes and stories for their case.

Seem a little silly? While no attorney has ever said something like this to me, from time to time, I have sensed that a client initially thought such exercises might be silly. Any hint of this quickly fades as we get into the exercise in our strategy sessions. Defense attorneys are often surprised by how helpful these simple and “silly” exercises help them in the strategy development process.

1. Focus. A verdict is a product of what jurors choose to talk about and focus on in deliberations, which means defense attorneys need to determine where the best focus of the case is. Ask yourself what you want jurors talking about most in deliberations. An easy exercise is to get a sheet of paper and create a list of all of the potential main characters, with the characters not being limited to just people. For example, the central character could be the recession. In a medical malpractice case, the central character could be some sort of aggressive disease. Who are the potential main characters in your story? Once your list is created, go through each and ask, “if jurors spend most of deliberations talking about this main character, what does that mean they would be talking about and is that something that I want them talking about?”

While every case is different, I have never in my thirteen-year career come across a case where it was helpful to the defense for the defendant to be the central character. Sometimes, it can be difficult to convince the client otherwise, particularly when the defendant does a lot of good for the community. These defendants need to understand that focus in deliberations does not usually translate to praise. In other words, if jurors are going to spend hours or days focusing on something in deliberations, it is not going to be hours or days of positive praise. Focus is critical, which is why defendants rarely, if ever, want to be the focus of the discussion in deliberations.

2. Controlling idea. This is an exercise that I was taught early on in graduate school, but only more recently borrowed the phrase “controlling idea” from screenwriting expert, Robert McKee. Here’s what McKee has to say about a controlling idea:

“A true theme is not a word but a sentence – one clear, coherent sentence that expresses a story’s irreducible meaning. I prefer the phrase Controlling Idea, for like theme, it names a story’s root or central idea, but it also implies function: The Controlling Idea shapes the writer’s strategic choices. It’s yet another creative discipline to guide your aesthetic choices toward what is appropriate or inappropriate in your story, toward what is expressive of your controlling idea and may be kept versus what is irrelevant to it and must be cut. The Controlling Idea of a completed story must be expressible in a single sentence…A story becomes a kind of living philosophy that the audience members grasp as a whole, in a flash, without conscious thought – a perception married to their life experiences. But the irony is this: The more beautifully you shape your work around one clear idea, the more meanings audiences will discover…as they take your idea and follow its implications into every aspect of their lives. Conversely, the more ideas you try to pack into a story, the more they implode upon themselves, until the film collapses into a rubble of tangential notions, saying nothing.”

The simple exercise for defense attorneys for developing a controlling idea is this: Complete the sentence, “this is a case about…” Write several iterations of this sentence. Tackle it from different angles. What is the first thing you would want to say in closing argument? What is the first thing you would want jurors to say in deliberations? Pack it with some core values, whether those are personal responsibility, accountability for choices, or any other potential defense values. The controlling idea should establish your focus and make a statement about it that captures the core value of the case and everything that you think is centrally important about it. Here’s an example of a controlling idea: “This is a case about how John Smith would rather point the finger at everyone else rather than accept accountability for his personal performance.”

Once you have a controlling idea, it should serve as a filter for everything you do in the case as you ask yourself, “how does this get jurors back to my controlling idea?”

3. Central facts. One of the best pieces of advice for attorneys that I have ever heard is that attorneys need to pick something to prove and prove it. Proving something is how the defense quickly gains credibility with the jurors. It is how the defense can grab their attention and keep issues that favor the defense at the forefront of jurors’ minds throughout the plaintiff’s case-in-chief.

Once the defense has developed its controlling idea, it needs to choose its central facts. Central facts are the 3-5 case facts that will move to the forefront throughout trial. Research shows jurors remember as little as 10% of what they heard over the course of trial by the time they reach the deliberations, so central facts are designed to make defense attorneys think about which facts they want jurors to remember the most. Ideally, there is little to no dispute over the central facts or they are very easy for the defense to prove. They should also have a symbolic element to them in that they tell jurors something important about the case. For example, a plaintiff who applies for a job with a corporation shortly after accusing it of fraud is a great symbolic fact because of all of the things it evokes, such as the question of whether or not the plaintiff has been honest in the case.

Defense attorneys should try to create a list of 3-5 central facts for their case. Keep it to the facts, not your “spin” on what the facts mean. The central facts should be something you can quickly show the jurors and convince them without them having to hear your take on them. They should be items that you would be comfortable adding to a list of things that, no matter what the plaintiff proves over the course of trial, he or she will never have an answer to.

4. Map the organizational structure of the strategy. Once you have your controlling idea and central facts, the next step is to create an outline of your story. This provides the architecture for the case presentation, not only in trial, but in briefing and oral argument. Defense attorneys should try to outline their entire story of the case in 10-12 points. Think of each point as a general headline for that “chapter” of the story. For example, one example of a chapter headline could be, “the recession hits and the plaintiff is facing default on several mortgages.” This is a general headline under which a lot of facts and testimony can be packaged.

I recommend that this outline go in chronological order even if you think our opening might go in a different order. This is not supposed to be a presentation outline; it is supposed to be an outline of the thematic or narrative architecture of the case that can provide broader guidance beyond just opening and closing. This outline can help you identify which witnesses and what evidence tells each chapter of the story. It can help you identify evidentiary gaps that need to be filled. For example, it might help you determine that you need an expert witness you had not previously considered.

5. Pick some key words. The last exercise is to start thinking about the key language in your case. For this exercise, walk through all of the results of the previous four exercises and start thinking about all of the common language and phrases everyday people use when discussing those issues. For example, if one of your chapters touches on how the plaintiff dealt with the economic recession, “bailout” is a powerful term because of what has come to mean to the American public. The defense attorney should walk through each of these chapters and create a list of terms and phrases that he or she can use repetitively throughout trial to help control the focus of the jurors.